1. — Manslaughter — Evidence — Declarations of Defendant.
Upon a trial for murder, one M. testified that on the evening of the homicide, and shortly before it occurred, appellant stated to him in the store that "no man could beat him out of fifty dollars and live; that he would kill him before he got home." Objection was urged to this testimony because no names were mentioned in connection with said statement; that same did not relate to deceased, and that same was irrelevant and immaterial. Other testimony tended to show that he alluded to deceased when the remark was made, one witness testifying that he made the same remark to him concerning a settlement with deceased. Held, from an examination of the record, the remarks referred distinctly to deceased, and the court did not err in admitting the same.
2. — Same — Circumstantial Evidence — Eyewitnesses — Bill of Exceptions.
Where, on a trial for murder, after the State had rested the case on purely circumstantial evidence, the appellant requested the court to require the State to put an eyewitness on the stand, insisting that where there was an eyewitness the State was required to place him on the stand. Held, the bill of exceptions showing that appellant had confessed to the act of killing, the same became positive evidence, and in view of the fact that the eyewitness was a brother-in-law of defendant, was unfriendly to the State, and was so drunk at the time as to know nothing about the facts in the case, there was no error.
3. — Same — Former Decision Questioned.
The doctrine of requiring the State to put an eyewitness on the stand, announced in the case of Thompson v. State, 30 Texas Crim. App., 325, was discussed in McCandless v. State, 42 Tex. Crim. 655, where it was seriously questioned.
4. — Character of Defendant — General Reputation — Proof of.
Where defendant put his character in issue as being that of "a good, quiet, peaceable and law abiding citizen," and the State was permitted to prove on cross-examination that the witness had heard that defendant had been sent to the penitentiary for cattle theft, and that fact, together with the reputation of defendant, had been discussed in the neighborhood where witness and defendant lived. This was objected to on the ground that same was immaterial and irrelevant to any issue. Held, while not competent for the State originally to put defendant's reputation in issue, still, defendant having himself done so, it was proper, on cross-examination of his witnesses, to prove particular acts of misconduct, or, where the proof was of general reputation, that the witness had heard of particular acts of misconduct.
5. — Charge of Court — Temporary Insanity.
Where there was evidence tending to show that appellant was under the influence of liquor at the time of the commission of the homicide, Held, no error in charging on temporary insanity caused by the recent use of ardent spirits.
6. — Same — Weight of Evidence.
Where the court charged the jury, "The evidence before you relative to defendant having served a term in the penitentiary can only be considered by you as affecting defendant's reputation as a good citizen, and you will consider same for no other purpose," and it appearing from the record that this testimony was not introduced for this purpose, but was merely the cross-examination of defendant's witnesses as to his character, placed in issue by himself, Held, error for the court to so submit defendant's character as a good citizen, and was a charge on the weight of evidence as calling their attention directly to defendant's character without telling them for what purpose his character could be considered.
HENDERSON, JUDGE.
Appellant was convicted of manslaughter, and his punishment assessed at confinement in the penitentiary for a term of three years; hence this appeal.
Appellant objected to the testimony of Charley Myers, to the effect that appellant, on the evening of the homicide, and shortly before the same occurred, stated to him, in the store, that no man could beat him (defendant) out of $50 and live. That he would kill him before he got home. This testimony was objected to, on the ground that defendant mentioned no names in connection with said statement, and that, consequently, said statement did not relate to deceased, and was irrelevant and immaterial. The bill does not state that these were all the facts attending the introduction of said evidence, so as to show that the court erred in admitting the same. There is other testimony tending to show that appellant alluded to deceased when he made this remark. One witness — Frank Dunklin — testifies directly that he made the same remark to him concerning a settlement with Goolsby, deceased. Looking at the record, there is no question but that the remark referred distinctly to deceased.
After the State had rested the case on purely circumstantial evidence, appellant requested the court to require the State to put W.M. Harding on the stand, who was an eyewitness to the transaction, insisting that where there was an eyewitness, the State was required to place such eyewitness on the stand. In this connection we are referred to Thompson v. State, 30 Texas Crim. App., 325. The doctrine announced in that case was discussed in McCandless v. State, 42 Tex.Crim. Rep., and the views therein announced were seriously questioned. However, the court explains the bill of exceptions, showing that appellant confessed the act of killing, which has been held by this court to be positive evidence. Furthermore, the court stated that the eyewitness was a brother-in-law of appellant, and was unfriendly to the State, and, besides, had previously testified he was so drunk at the time that he knew nothing about the facts of the case. We do not believe the court erred in this matter.
Appellant put his character in issue as being a good, quiet, peaceable and law abiding citizen. During the cross examination of appellant's witnesses, the State was permitted to prove by them that they had heard defendant had been sent to the penitentiary for theft of cattle; that it had been discussed in the neighborhood where witnesses and defendant lived, when his reputation was being discussed. This was objected to on the ground that it was immaterial and irrelevant to any issue in the case, and did not tend to prove or disprove whether defendant's reputation as a quiet and peaceable citizen was good. Of course, it was not competent for the State originally to put appellant's reputation in issue; but, he having done so, it was proper, on cross-examination of his witnesses, to prove by them particular acts of misconduct; or, where the proof was of general reputation on the part of appellant, that the witnesses had heard of particular acts of misconduct. Rice's Crim. Ev., p. 603, citing State v. Merriman, 34 S.C. 16.
We do not believe the court erred in charging on temporary insanity, caused by the recent use of ardent spirits, as there was evidence tending to show that appellant was under the influence of liquor at the time of the homicide.
The following portion of the court's charge is also complained of as erroneous: "The evidence before you relative to defendant having served a term in the penitentiary can only be considered by you as affecting defendant's reputation as a good citizen, and you will consider the same for no other purpose whatsoever." This is objected to on the ground that such testimony could only be considered with reference to the credibility of appellant. The testimony does not appear, from the record, to have been introduced for this purpose, but merely in cross-examination of appellant's witnesses as to his character, which he placed in issue. However, it was not competent for the court to submit appellant's character as a good citizen to the jury, as was done in the above charge. It was a charge on the weight of the evidence, and was calling the attention of the jury directly to appellant's character as a good citizen, without even undertaking to tell the jury for what purpose they could consider his character as a good or bad citizen. This testimony, pro and con, was before the jury, and like other testimony, they could consider it for what it was worth, as shedding light on the transaction, and as indicating whether or not a person of the character of appellant was shown to have borne, would likely commit the offense charged against him. But it was not proper for the court to call attention to this matter, and thus to emphasize and make prominent the fact that there was evidence showing appellant had been in the penitentiary. For this reason, the judgment is reversed and the cause remanded.
Reversed and remanded.